Smith-Evans v Smailes
(Chancery Division, His Honour Judge Purle QC (sitting as a High Court judge), 29 July 2013)
SE's proposal for an IVA was approved at a creditors' meeting in May 2008, with modifications, the only creditors voting being financial institutions who submitted proxies. Two proxies had been submitted by TiX and it appears that its proxy instructions had not been fully complied with, in that there had been divergences from the instructions received as not all of the modifications had been accepted. The chairman asked TiX, on behalf of the creditors to review the position. Nothing was heard, and the chairman reported that the IVA had been approved, with modifications. In July 2010, the supervisor, S, served a certificate of breach on SE, on the basis that various mortgaged properties had not been sold off as required by a modification to the IVA that had been requested by Her Majesty's Revenue and Customs (HMRC), and that SE had failed to liaise with S in relation to that requirement. At a subsequent creditors' meeting in March 2011, the two TiX creditors whose proxies had not been complied with voted in favour of issuing a certificate of determination, while HMRC voted in favour of the presentation of a bankruptcy petition. A bankruptcy order was made on S's petition. SE appealed, arguing that the failure properly to approve the modifications at the outset meant that the IVA had not been validly approved. His Honour Judge Purle (sitting as a High Court judge) dismissed the appeal. The two TiX creditors had ratified any issues as regards the failure to follow the original proxy instructions by their subsequent voting in respect of the IVA. It was clear that SE had approved the proposal as modified and, in particular, had approved the modifications in respect of which there was alleged breach.
"BPIR is an excellent series, of interest to both corporate and personal insolvency lawyers,...